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ADR, The Judiciary, and Justice: Coming to Terms with the Alternatives

[This student note is the closing chapter of the Harvard Law Review Developments in the Law Issue for the year 2000, devoted to developments in civil litigation.]

Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself--in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. "Alternative" models of dispute resolution have inarguably penetrated the mainstream; the relevant question now is how they will change it.

The judicial embrace of ADR presents opportunities and concerns that distinguish court-annexed programs from the broader trend of contractual ADR. Its versatile mechanisms have much to offer overloaded courts, but as ADR gains ground in the judiciary, it becomes urgent to better isolate the values of each from the other. Policymakers must carefully design judicial ADR programs to preserve the access to public adjudication that has rendered the judiciary so invaluable an institution, and they must incorporate into judicial ADR the procedural norms necessary to satisfy fundamental fairness without sacrificing the flexibility that gives ADR its force.

This Part explores developments in ADR generally, with prescriptive attention to the unfolding progress of the judicial use of ADR. Section A reviews the history of the modern ADR movement, section B surveys significant developments in statutory and case law, and section C outlines the need for further procedural elaboration in court-annexed ADR.